United States District Court, S.D. California
December 13, 2005.
JOSEPH GOTELL, Plaintiff,
GENMAR REAL ESTATE, PETER MARX, SAN DIEGO HOUSING COMMISSION, et al., Defendants.
The opinion of the court was delivered by: JEFFREY MILLER, District Judge
ORDER DISMISSING PLAINTIFF'S FIFTH AMENDED COMPLAINT WITHOUT
PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii)
Plaintiff, proceeding pro se, submitted a civil rights
complaint pursuant to 42 U.S.C. section 1983, arising out of a
state court unlawful detainer action. In an order dated February
11, 2005, this Court granted Plaintiff In Forma Pauperis
("IFP") status, and dismissed the complaint for failure to state
a claim after conducting the initial screening mandated by
28 U.S.C. section 1915(e)(2)(B)(ii). Plaintiff thereafter filed four
amended complaints, each of which were dismissed for continued
failure to state a federal claim. Plaintiff filed a fifth amended
complaint on October 27, 2005.
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding IFP pursuant to
28 U.S.C. section 1915(a) is subject to a mandatory and sua sponte
review and dismissal by the court to the extent it fails to state
a claim upon which relief may be granted.
28 U.S.C. § 1915(e)(2)(B). As currently pleaded, it appears that Plaintiff's fifth amended complaint is
still subject to sua sponte dismissal under
28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which
relief may be granted.
In the fifth amended complaint, Plaintiff alleges five causes
of actions against Defendants for: (1) violation of his rights
under the Fourteenth Amendment, which the Court construes as an
action pursuant to 42 U.S.C. section 1983; (2) violation of his
rights under the Sixth Amendment; (3) violation of his Federal
Section 8 Housing contract; (4) violation of his rights under
Title VI of the Civil Rights Act of 1964; and (5) conspiracy,
perjury, fraud, and extortion of monies.
A. Section 1983
Plaintiff's fifth complaint continues to fail to state a claim
under 42 U.S.C. section 1983. Section 1983 provides a remedy to
individuals who have been deprived of a constitutional or federal
statutory right under color of state law. 42 U.S.C. § 1983. In
this case, Plaintiff has sued private attorneys, his former
landlord Genmar Real Estate, and Legal Aid of San Diego.
Plaintiff has not alleged how any of these defendants, as private
individuals and entities, has acted under color of state law.
Plaintiff has also sued the San Diego Housing Commission but has
failed to allege that the San Diego Housing Commission was acting
to enforce some policy or decision of the commission or was
acting pursuant to some government custom. See Monell v. Dept.
of Social Servs., 436 U.S. 658, 690-91 (1978). Accordingly,
Plaintiff has failed to state a claim under Section 1983.
B. Sixth Amendment
Plaintiff claims that his attorney in his unlawful detainer
action rendered ineffective assistance. The Sixth Amendment only
guarantees counsel for criminal defendants. There is no right to
counsel in a civil case. See Lassiter v. Dept. of Social
Servs., 452 U.S. 18, 25 (1981). Therefore, Plaintiff cannot
bring a claim under the Sixth Amendment.
C. Breach of Federal Section 8 Housing Contract
Plaintiff alleges that his rent was wrongfully increased as the
result of racial discrimination and in violation of his Section 8
housing contract. Presumably, Plaintiff is seeking to enforce his rights under 42 U.S.C. § 1437f(o).
Plaintiff's claim is a state law breach of contract claim over
which this Court does not have jurisdiction. See Rivera v.
Phipps Houses Services, 2001 U.S. Dist. LEXIS 8939, *11-13
(S.D.N.Y. June 29, 2001) (noting that there is no recognized
private right of action under § 1437f and that regulations
provide only for actions by public housing authorities without
mentioning tenant-initiated suits).
D. Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act prohibits programs and
activities that receive federal funding from discriminating
against individuals on the basis of race, color, and national
origin. 42 U.S.C. § 2000d et seq. (2005). Construing the
complaint liberally, Plaintiff's allegation that he is the
beneficiary of a Section 8 housing voucher is also an allegation
that the San Diego Housing Commission and Genmar Real Estate
receive federal funds. Plaintiff has also alleged that he was
singled out for an unlawful rent increase because of his race.
Therefore, Plaintiff has stated a claim for relief under
42 U.S.C. § 2000d against the San Diego Housing Commission and
Genmar Real Estate. The complaint does not state a claim for
relief under Title VI of the Civil Rights Act as to the remaining
E. Conspiracy, Perjury, Fraud, and Extortion of Monies
Plaintiff seeks to bring various state law claims against
Defendants, none of which state claims upon which relief may be
granted. Civil conspiracy is a theory of liability and not a
stand-alone cause of action. See Applied Equipment Corp. v.
Litton Saudi Arabia Limited, 7 Cal.4th 503, 510-11 (1994).
Perjury is a criminal, not civil, offense; therefore, Plaintiff
lacks standing to bring the charge. Plaintiff has also failed to
plead his claim of fraud against Defendants with particularity as
required by Rule 9(b) of the Federal Rules of Civil Procedure.
See Fed.R.Civ.Proc. 9(b). Finally, although it is not clear
whether Plaintiff is attempting to allege extortion under state
or federal law, Plaintiff has not alleged the elements of
extortion because he has not alleged that any of Defendants
sought to obtain his money by means of a threat.
F. Relief Sought
Plaintiff is asking for an injunction to prevent Defendants
from selling property or transferring money and for $22 million as punitive damages.
Punitive damages are not an available remedy for a violation of
42 U.S.C. § 2000d, Plaintiff's only remaining viable claim. See
Barnes v. Gorman, 536 U.S. 181, 187-89 (2002). The injunction
sought also bears no relationship to the harm Plaintiff claims to
have suffered. Accordingly, Plaintiff's complaint is also
dismissed because it does not seek relief that is within the
power of this Court to grant.
Conclusion and Order
Accordingly, IT IS HEREBY ORDERED that the amended complaint
is DISMISSED without prejudice for failing to state a claim
upon which relief can be granted pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). If Plaintiff still wishes to continue to
proceed with this matter he must, within thirty (30) days: (1)
FILE A SIXTH AMENDED COMPLAINT; AND (2) ATTACH A COPY OF THE
INITIAL ORDER GRANTING IFP STATUS.
IT IS SO ORDERED.
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